Of carriers audited by the DOT, only 7% pass without a violation. And those that don’t pass have an average of seven violations.
Fines are usually “per violation,” which can mean a fine for each driver out of compliance.
It adds up fast.
DOT Regs and Challenges
Since its founding in 1966, the U.S. Department of Transportation (US DOT) has had the mission to provide the safest, most efficient and modern transportation system in the world. In so doing, the DOT has developed a rigorous set of regulations to guarantee that safety sensitive transportation workers are qualified and employers are held to strong safety standards.
It becomes increasingly challenging for employers to stay in tune with frequently changing DOT regulations to remain compliant.
Following are some of the common compliance challenges for FMCSA employers.
Background Check Violations
Employers are required to contact a driver’s previous employers for the last 3 years (2 years in other DOT modes) for records of past accidents, the driver’s safety history, and drug and alcohol testing history.
The driver herself must self-report, and she must also consent to allow former employers to provide records to the new employer.
Sample forms an employer may use are below (pdf).
Many companies are not getting this done.
The FMCSA Clearinghouse, implemented 1/6/20, will eventually supplant this process, but not until the Clearinghouse has accumulated 3 years’ worth of records (1/5/23). Until that time, employers are required to use both processes.
Improper or Insufficient Use of the FMCSA Clearinghouse
In January 2020, the FMCSA established the Drug and Alcohol Clearinghouse, a secure online database of drug and alcohol violations by commercial driver’s license (CDL) holders. The Clearinghouse contains records of drug and alcohol violations, including positive drug or alcohol test results and test refusals.
Before allowing a new employee driver to get behind the wheel, the employer must conduct a Pre-Employment Query in the Clearinghouse, AND receive a “Driver Not Prohibited” result.
In order for a driver to consent to the query, he must be registered as a driver in the Clearinghouse (pdf). The only one who can register a driver is the driver himself.
“Any employer, employee, medical review officer, or service agent who violates any provision of 49 CFR part 382, subpart G … is subject to a civil penalty not to exceed $5,833.”
The DOT also requires employers to conduct a Limited Query every 12 months for every driver in the fleet. Consent for this is also required, usually in the form of a general consent kept in the employee’s file.
We have had a number of newly hired drivers turn up Prohibited who had not disclosed a past violation to the new employer.
Not all C/TPAs offer assistance with the FMCSA Clearinghouse. InOut Labs does.
Incorrect Random Testing Process
The DOT requires employers to randomly test 50% of their CDL drivers for drugs and 10% of them for alcohol every year. Selection periods can be monthly or quarterly and testing is supposed to be conducted throughout the period, and not clumped together all at once. The DOT requires companies to finalize all testing by December 31st of each year.
Some employers wait until the end of the year to conduct all testing, which can cause a logistical challenge. This can delay testing and force the driver pool – and the company – out of DOT compliance.
Or, at the end of the testing period, an employer notifies the C/TPA that a driver selected for testing is no longer with the company and not allowing enough time to select and test an alternate, resulting in a pool that comes up short of the required 50% and 10%.
Other common problems:
- Selecting alternates when the originally selected driver is available for testing.
- Not completing all random tests within the selection period.
- Using “Random” as a reason for test when it is actually a Reasonable Suspicion
The average FMCSA fine for drug and alcohol violations is $5833 per non-compliant driver, making the employer potentially vulnerable to tens of thousands of dollars in fines.
Incomplete or Out-of-Date DQ files
Driver Qualification (DQ) File management requirements mandate that every employer of CDL drivers maintain certain records that are easily accessible in the event of a DOT audit. This file must contain specific information:
REQUIRED per 49 CFR, Part 391.51
- Medical examiner’s certificate*
- Driver’s application for employment
- Inquiry to previous employers for safety performance history (previous 10 years)
- Inquiry to state agencies for driver’s motor vehicle record and carrier’s annual review of record (aka Initial MVR Check and Annual MVR Check)
- Annual driver’s certification of violations
- Driver’s road test and completion certificate or equivalent
Not Required in DQ Files, but good practice:
- Inquiry about drug and alcohol tests (FMCSA Clearinghouse)
- Background screening report
- Pre-employment drug test
- Statement of on-duty hours
- A copy of the driver’s license and license information
- Certification/audit for compliance.
*An estimated 60% of federal medical certificates are completed incorrectly or signed by an ineligible physician. Only physicians listed on the National Registry of Certified Medical Examiners – who have completed specialized training that allows them to perform DOT physicals – can sign a federal medical certificate.
A medical certificate signed by any other physician is invalid, which makes the driver non-compliant, thereby making the employer liable for using an ineligible driver.
For more info about DQ Files, click here.
Allowing an Ineligible Driver to Operate a CMV
All carriers know that they shouldn’t allow a driver with a suspended/revoked CDL behind the wheel.
That is why carriers are required to run an MVR (Motor Vehicle Records check) on each driver at the time of hire as well as annually. Employers need to be vigilant about making sure that each driver has a valid driver’s license.
30.27% of total acute violations involve a driver operating with a suspended or revoked CDL. For those who were fined for allowing a driver to operate with a suspended/revoked CDL, the average fine was $8991.
Failing to Implement a Drug and Alcohol Testing Program Which Meets FMCSA Requirements
A compliant drug testing program includes not only a pre-employment drug test and a random testing program, but also post-accident, reasonable suspicion and follow-up testing, as required by 49CFR Parts 40 and 382.
AND the following:
In 2020, these violations accounted for more than 31% of all violations, with an average fine of $8361. Carriers with multiple violations settled for $20,000-$42,000 for noncompliant drug testing programs.
The best way to avoid these fines is to have a compliant DOT drug and alcohol testing program in place. Working with a Consortia/Third Party Administrator like InOut Labs will help you stay on top of the regulations and help ensure compliance.